Florida Probate, Trust & Guardianship Litigation

Florida Probate Litigation Rules

Probate litigation in Florida has its own sets of rules, starting with the Florida Probate Code, the Florida Probate Rules, certain appellate rules, and a large body of caselaw.

Formal Notice

Formal Notice is a method for serving interested persons in probate, typically via certified mail, although hand service of a summons can also be used.  Any person involved in a probate can serve other interested persons with a pleading or motion, and serve it via formal notice, pursuant to Florida Probate Rule 5.040, as follows:

(1)  When formal notice is given, a copy of the pleading or motion shall be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice * * * and to file the original of the written defenses with the clerk of the court * * * and notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice.
(2) Effect of Service of Formal Notice. After service of formal notice, informal notice of any hearing on the pleading or motion must be served on interested persons, provided that if no written defense is served within 20 days after service of formal notice on an interested person, the pleading or motion may be considered ex parte as to that person, unless the court orders otherwise.
(3) Manner of Service of Formal Notice. Formal notice must be served in the following manner: (A) by sending a copy by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt; (B) as provided in the Florida Rules of Civil Procedure for service of process; (C) as otherwise provided by Florida law for service of process; or (D) by first-class mail when only in rem or quasi in rem relief is sought against a person if: (i) registered or certified mail service to the addressee requiring a signed receipt is unavailable and if delivery by commercial delivery service requiring a signed receipt is also unavailable; (ii) delivery pursuant to subdivision (a)(3)(A) is attempted and is refused by the addressee; or (iii) delivery pursuant to subdivision (a)(3)(A) is attempted and is unclaimed after notice to the addressee by the delivering entity.

Can failure to respond lead to default?

No.  Even though failure to respond can allow the litigant to obtain relief without a hearing, once a notice of hearing has been filed, default is not permissible.

In Walker v. Bailey, (5th DCA 2012), Florida’s Fifth District Court of Appeals reversed an attempt to default a litigant who did not respond to a formal notice.  A minor child died.  The mother was appointed personal representative of the estate and filed a wrongful death suit.  After settling, the mother petitioned the probate court for an equitable distribution of the settlement proceeds under Florida’s Wrongful Death Act.  The mother’s attorney provided the petition for equitable distribution to the father with formal notice, and advised the father that a hearing would be held on the matter.  

After 20 days elapsed, the trial judge entered an order apportioning 100% of the wrongful death proceeds to the mother, and the mother notified the father that the hearing on the matter would be cancelled.  The appellate court held that the failure to allow the father to be heard on the matter violated his due process rights.  The court also explained the operation of the formal notice rule, as follows:

Ms. Bailey argues that Mr. Walker was afforded due process because he was given notice pursuant to Florida Probate Rule 5.040 and failed to timely respond. This view misperceives the rule’s scope.  Rule 5.040 provides that when formal notice is given, the failure to serve written defenses within twenty days permits the trial court to enter a judgment or order for the relief demanded in the pleading or motion without further notice. Fla. Prob. R. 5.040(a)(1) (emphasis added). Ms. Bailey’s petition does not set forth a specific apportionment plan beyond asking for a “majority” of the proceeds and certainly failed to inform Mr. Walker that she sought all of the settlement proceeds. Under these circumstances, Mr. Walker had a right to rely on the notice scheduling a hearing on Ms. Bailey’s petition, and was not required to file an answer or any defensive pleading or paper. The rule does not provide for the entry of a default against a party who fails to respond. The Florida Bar, Litigation under Florida Probate Code § 1.8 (2010-11 ed.).

In reversing the trial court’s ruling, the appellate court summed up its reasoning as follows:

Here, the probate court apportioned the settlement entirely to Ms. Bailey without a hearing and without considering any evidence.  This procedure denied Mr. Walker due process.

Is formal notice required to review attorney compensation?

Yes.  Because relief is being sought against the individual attorney and not from the corpus of probate assets, the court must have personal jurisdiction over the person being sued.  In Simmons v. Baranowitz (4th DCA 2015), the court explained formal notice is required to confer personal jurisdiction over an individual.  The filing of documents on behalf of the personal representative and receipt of a fee did not suffice to confer jurisdiction on the attorney in his individual capacity.  The surcharge proceeding, the Fourth District explained, was essentially a new action against an individual who had not previously been a party to any matter.  Because that attorney was not given proper notice of the surcharge proceeding against him, the trial court did not have the requisite jurisdiction to order the attorney to pay damages. 

Is formal notice required to surcharge a personal representative?

Yes.  As explained in Kozinksi v. Stabenow, “a proceeding seeking an order or judgment imposing a refund or surcharge against a fiduciary or a fiduciary’s agent, individually, and the immediate return of money to a trust, probate, or guardianship estate as a result of a breach of fiduciary duty (charging excessive fees) is tantamount to a judgment for damages, requiring personal service on the fiduciary as an individual, and not in any representative capacity.”  As further explained:
Florida Probate Rule 5.025(a) specifically provides that a proceeding to “surcharge a personal representative” is an adversary proceeding. Fla. Prob. R. 5.025(a). The rule provides the same regarding guardians and guardianship proceedings. Thus, case law discussing the principles of “surcharge” in the guardianship context are useful in analyzing the principles of “surcharge” in the probate context. We also note that Chapter 744 governing guardianship proceedings has similar provisions for review of fees as found in section 733.6175. See § 744.108, Fla. Stat.(2014).
“A ‘surcharge’ is the amount that a court may charge a fiduciary that has breached its duty.” Reed v. Long, 111 So. 3d 237, 238 (Fla. 4th DCA 2013) (citing Merkle v. Guardianship of Jacoby, 862 So. 2d 906, 907 (Fla. 2d DCA 2003)). We also wrote in Reed that “[t]he purpose of such an award is to make the [ ] estate whole when the [fiduciary]’s actions cause loss or damage to the [estate].” Id. at 239 (citations omitted). Moreover, in the context of trust proceedings, the Fifth District has said that “[a] surcharge action seeks to impose personal liability on a fiduciary for breach of trust through either intentional or negligent conduct.” Miller v. Miller, 89 So. 3d 962, 962 n.1 (Fla. 5th DCA 2012). It is clear under the case law that a surcharge proceeding can be pursued when a fiduciary pays excessive fees to himself, herself, or agents of the fiduciary. In re Estate of Winston, 610 So. 2d 1323, 1325 (Fla. 4th DCA 1992) (“It follows without the necessity of citation of authority that the personal representative is subject to surcharge for any improper or excessive payments [of fees].”).

Adversarial Proceedings

Some probate proceedings can become contested  – think of a few obvious proceedings such as a will contest or an attempt to remove a personal representative for breach of duty.  If a probate proceeding becomes contested, the rules of civil procedure should apply, and they do.  If a probate proceeding is not adversarial, only certain of the rules of civil procedure apply.

What Rules of Civil Procedures Apply in Florida Probate to a Non-Adversarial Proceeding?

Florida Rule of Probate 5.080 sets forth some of the rules of civil procedure that apply in all probate proceedings, basically allowing all forms of discovery to apply:

(a) Adoption of Civil Rules. The following Florida Rules of Civil Procedure shall apply in all probate and guardianship proceedings:

(1) Rule 1.280, general provisions governing discovery.
(2) Rule 1.290, depositions before action or pending appeal.
(3) Rule 1.300, persons before whom depositions may be taken.
(4) Rule 1.310, depositions upon oral examination.
(5) Rule 1.320, depositions upon written questions.
(6) Rule 1.330, use of depositions in court proceedings.
(7) Rule 1.340, interrogatories to parties.
(8) Rule 1.350, production of documents and things and entry upon land for inspection and other purposes.
(9) Rule 1.351, production of documents and things without deposition.
(10) Rule 1.360, examination of persons.
(11) Rule 1.370, requests for admission.
(12) Rule 1.380, failure to make discovery; sanctions.
(13) Rule 1.390, depositions of expert witnesses.
(14) Rule 1.410, subpoena.

There is one catch, however, to doing discovery in a probate proceeding – the court has far more power to limit the scope of discovery than in regular civil litigation:

(b) Limitations and Costs. In order to conserve the assets of the estate, the court has broad discretion to limit the scope and the place and manner of the discovery and to assess the costs, including attorneys’ fees, of the discovery against the party making it or against 1 or more of the beneficiaries of the estate or against the ward in such proportions as the court determines, considering, among other factors, the benefit derived therefrom.

And Rule 5.080 makes it abundantly clear that these discovery procedures can be used in non-adversarial proceedings:

(c) Application. It is not necessary to have an adversary proceeding under rule 5.025 to utilize the rules adopted in subdivision (a) above. Any interested person may utilize the rules adopted in subdivision (a).

What Rules of Civil Procedure Apply in Florida Probate to an Adversarial Proceeding?

Basically, all of them.  Rule 5.025(d)(2) states as follows:

(2) After service of formal notice, the proceedings, as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.

Rule 1.525 is known as the “30-day” rule for filing a motion for attorney fees or costs.


Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

Because probate disputes are often rolling in nature and can have overlapping matters, it is not always easy to discern when an action is over.  Also, many probate disputes are resolved short of a “judgment,” with orders being entered rather than final judgments.  The elimination of a formal deadline triggered by a judgment allows the probate court to handle attorney fees requests in a practical manner.

What Does an Adversarial Petition Need to Contain?

Like a complaint is a civil suit, a petition “shall contain a short and plain statement of the relief sought, the grounds therefor, and the jurisdiction of the court where the jurisdiction has not already been shown.” Fla. Prob. R. 5.020(b); See also LaCalle v. Barquin, 987 So. 2d 1245, 1245 (Fla. 3d DCA 2008).

Which Matters in a Florida Probate Proceeding are Adversarial?

Some matters are automatically adversarial, and other matters need to be declared adversarial.

Rule 5.025(a) sets forth the list of matters that are automatically adversarial.

(a) Specific Adversary Proceedings. The following are adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, obtain an injunction or temporary injunction pursuant to section 825.1035, Florida Statutes, probate a lost or destroyed will or later discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.

If a proceeding is not adversarial, a litigant or the probate court can declare the matter adversarial:

(b) Declared Adversary Proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.

(1) If served by the petitioner, the declaration must be served with the petition to which it relates.

(2) If served by the respondent, the declaration and a written response to the petition must be served at the earlier of: (A) within 20 days after service of the petition, or (B) prior to the hearing date on the petition.

(3) When the declaration is served by a respondent, the petitioner must promptly serve formal notice on all other interested persons.

(c) Adversary Status by Order. The court may determine any proceeding to be an adversary proceeding at any time.

Can a Probate Proceeding Be Treated as Adversarial by Estoppel?

Yes, as explained in Dora v. Morrison.  Two competing petitions to determine the homestead status of real property were filed.  A homestead petition is not automatically adversarial, and none of the parties declared the petitions as adversarial.  One litigant (Appellee) filed a motion to strike another litigant’s petition (Appellant).  The Appellant responded that motions to strike are only allowed under Rules 1.150 and 1.140(f) of the Florida Rules of Civil Procedure, not under the Probate Rules, unless the matter had been declared adversarial, which had not been done.  Therefore, Appellant contended, the motion to strike should not have been allowed.  Not so fast:

In their motion for rehearing and on appeal, Appellants argue that motions to strike were not permissible below because the proceedings were non-adversary probate proceedings. Typically, Appellants would be correct, and that argument would carry the day. Neither of the proceedings in which the motions were filed had been declared adversary and there is no similar probate rule under which Appellees could have been traveling.

However, this position is inconsistent with Appellants’ successful motion to consolidate pursuant to rule 1.270, a rule which also does not apply in non-adversary proceedings. See Fla. Prob. R. 5.080(a).

Appellants urged the trial court to consolidate probate cases with circuit civil cases pursuant to rule 1.270. Appellants pursued consolidation for both discovery and trial, detailing the scathing nature of the litigation between and among the several parties involved here, over the opposition of Appellees, who relied on rule 1.270 to support their own position against consolidation for trial purposes. Once Appellants were granted their consolidation request in toto and only after having their petitions stricken did Appellants contest the applicability of the rules of civil procedure on rehearing, which was then noticeably filed pursuant to probate rule 5.020(d).

As such, Appellants would gain an unfair advantage derived from a clearly conflicting position asserted for the first time at rehearing if not judicially estopped. See Anfriany, 232 So.3d at 428 (explaining that prejudice occurs when “the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped” (quoting Grau, 899 So.2d at 400)). This conduct is the “playing fast and loose with the courts” judicial estoppel is designed to prevent. Up until the motion for rehearing, the parties acted as though this was an adversary probate proceeding, so we review the propriety of the motions to strike pursuant to the rules of civil procedure as though these were adversary probate proceedings.

So the rule announced by the court is pretty simple:  if the parties act like the matter is adversarial, one of the parties cannot then later complain that the matter is being treated as adversarial without a proper declaration of such, under the principle of judicial estoppel.

Learn more about how a Florida probate lawyer can help you.

Oral Argument at 5th District Court of Appeals

Jeffrey Skatoff

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